SUKKAR Paul Tony v R [2007] NSWCCA 298 | Case summary

WEDNESDAY 10 OCTOBER 2007 SUKKAR Paul Tony v REGINA Judgment 1 GILES JA: I agree with the reasons of Hulme J. I would add that in R v Barrientos [1999] NSWCCA Abadee J, with whom Sheller JA agreed, referred at [46] to the need to recognize the distinction between, on the one hand the giving of the discount, and on the other, the quantum of the discount where an entitlement to some discount was established. His Honour referred to this need in considering a discount for assistance to authorities. He said that entitlement to a discount does not necessarily depend upon establishing whether or not the information supplied turns out in fact to have been effective, but that the extent of benefit which flows from assistance is a matter relevant to the evaluation of the discount. 2 His Honour spoke in the past tense, as was appropriate on the facts. At times in submissions this morning Senior Counsel for the applicant suggested that s 23 of the Crimes (Sentencing Procedure) Act was concerned only with past assistance, and therefore where it referred in para (b) of subs (2) to regard to the significance and usefulness of the offender's assistance it provided no warrant for paying account to a forecast of the significance and usefulness where, as in the present case, that was a matter for the future. 3 I do not think that that can be accepted. Apart from the reference in para (d) of s 23(2) to promised assistance, para (b) itself refers to the significance and usefulness of the assistance "taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered". Section 23(1) also refers to the degree to which the offender "has undertaken to assist". Plainly, there needs to be an evaluation by the judge, for the purposes of sentencing, of the significance and usefulness of the proffered assistance. 4 For the reasons given by Hulme J I am not persuaded that there was any error in the evaluation made by the judge in the present case. I agree with the orders his Honour proposes. 5 HULME J: On 25 August 2005 the above named applicant for leave to appeal was involved in the supply of 25,000 ecstasy tablets for a price of some $13 per tablet. He had been involved in discussions leading up to that supply from some weeks prior to 6 July 2005. By 25 August the police were aware of the proposed transaction and very shortly after the supply occurred, and whilst he was still in the presence of the tablets, the applicant was arrested. 6 The total weight of the tablets was slightly over 5.9 kg, that is nearly 12 times the commercial quantity of 500 grams specified in schedule 1 of the Drug Misuse and Trafficking Act 1985. The applicant's conduct thus rendered him liable to life imprisonment. Pursuant to s54A of the Crimes (Sentencing Procedure) Act a standard non-parole period of 15 years imprisonment applies to the offence of supplying a large commercial quantity of ecstasy. 7 The applicant pleaded guilty in the local court on 22 November 2005 and on 19 February 2007 was sentenced by Judge Charteris to imprisonment for a total term of 11 years and six months, including a non-parole period of 7 years and six months, both such periods commencing on 25 August 2005. The application for leave to appeal to this court relies on one ground only, namely: "In the determination of sentence, the sentencing judge has failed to give the applicant an appropriate discount from the sentence otherwise applicable in order to recognise the applicant's willingness to assist the authorities." 8 In his Honour's remarks on sentence he did not expressly state what, if any, discount he afforded the applicant in this regard. Indeed, counsel then appearing for the applicant, Mr Boulton SC, had invited his Honour not to do so. After disclaiming any suggestion that the applicant was entitled to any substantial discount for past assistance, counsel submitted that the offer the applicant had made to give evidence in the future was of value, but went on to observe that, "this is not a typical case where a discrete discount should be identified for future assistance" and " I do not ask that your Honour specify a specific discount for the offer of evidence in the future, such as to give rise to proceedings in the Court of Criminal Appeal if the offender does not give evidence". Mr Boulton also remarked that, "it might tend to be one of those other factors that your Honour weighs in the balance in determining the appropriate outcome." 9 His Honour's remarks make it apparent that the latter is in fact the way he approached the topic and it is impossible from those remarks to determine what, if any, discount he gave the applicant for assistance considered in isolation. Furthermore, the only way in which one could conclude that any allowance was not appropriate is by a consideration of the overall sentence in light of the applicant's offending and subjective circumstances. To a summary of these I now turn. 10 The principal Crown evidence as to the circumstances of the offence was provided in a statement of agreed facts. The applicant, however, gave evidence and, although in response to a question from the Crown Prosecutor he said that he accepted those facts in totality, he gave a deal of evidence at odds with them, at least so far as his role was concerned. Although recognizing on more than one occasion at least some of the inconsistency, and expressing the view that the applicant tended to minimise his involvement, his Honour seems to have largely accepted the applicant's version and, given that there has been no challenge to the propriety of him doing so, I am content to approach the matter on the basis of his Honour's findings. 11 These were to the effect that the applicant responded to interest in the acquisition of drugs expressed by a person referred to as "the source" by introducing "the source" to a Mr Burton, participating in conversations between those two persons, and then being present on the day of supply, albeit the actual supply had occurred some distance away to where Mr Burton and "the source" had repaired for the purposes of that occurring. His Honour accepted that the applicant was to receive for his assistance some $10,000 from Mr Burton. His Honour characterised the applicant as playing a lesser role than Mr Burton, namely, that of a middleman who introduced the parties, and his offending as "slightly below mid-range of seriousness for offences of this nature". 12 There was unchallenged evidence before his Honour that the total street value of the tablets was approximately $1.15 m, and his Honour said that he regarded the quantity of drugs involved as an aggravating feature. No doubt bearing in mind the terms of s21A of the Crimes (Sentencing Procedure) Act, his Honour also observed that the offending involved organised criminal activity. 13 Turning to subjective factors, his Honour concluded that the applicant had been suffering from major depression at the time of offending, in part due to major difficulties with the business in which he had been engaged, and that his judgement was to an extent adversely affected. The depression remained at the time of sentence. Although he felt unable to make a finding as to the applicant's likelihood of re-offending, his Honour assessed the applicant as having considerable prospects of rehabilitation. 14 Other relevant findings of his Honour, and to some extent his Honour's reasonings, are contained in the following extracts from his remarks: "The offender said that, if Mr Burton is arrested and comes to trial, the offender would be prepared to give evidence. This is apparently an offer that he had made previously. On the evidence before me, the prosecution has a significant case against Mr Burton absent any evidence from the offender. The evidence does not satisfy me that the offender would be likely to be called by the prosecution in any trial of the man Burton. However, his offer to give evidence is strong evidence, in my view, of his contrition." "I take into account the very early plea of guilty. In my view, the offender is entitled to the maximum available discount for the utilitarian value of his plea of guilty. He pleaded guilty in the Local Court and offered to give evidence against the man Burton, should that person be apprehended. There has been substantial utility flowing from the plea of guilty." "I am satisfied that the offender shows considerable remorse - I accept his evidence on that topic before me. I take into account his very early plea of guilty as evidence of his remorse, together with his offer to give evidence at any trial involving Mr Burton. For the reasons I have stated, I think it unlikely that the offender would be required to give such evidence, but it does indicate the depth of his regret. The Crown conceded that the offender was always willing to assist the authorities." "I have taken into account his plea of guilty. As I have observed, I am going to give him a significant discount for his contrition." "Having allowed the maximum deduction for the offender's plea of guilty, and having allowed him a discount for his contrition, I conclude that there should be a sentence of eleven years and six months imprisonment. … I fix a minimum period of seven years and six months, with a parole period of four years." 15 As has been said, prior to 25 August the police had become aware of the proposed transaction. The apparent purchaser of drugs was in fact an undercover police officer and all parties had been the subject of considerable police surveillance. A search of Mr Burton's premises after the applicant's arrest provided other evidence against Mr Burton, and it was no doubt the matters referred to in these paragraphs that led his Honour to the view that it was unlikely the applicant would be required to give evidence against Mr Burton. It is, however, appropriate to record that the manner in which his Honour expressed himself in this regard was not positively that the applicant would not be called, rather do the terms thus indicate that his Honour thought the likelihood was against that occurring, whilst recognizing the possibility that it might. 16 Reference must also be made to the applicant's antecedents. He was born in 1965 and between 1978 and 1986 there were a number of offences of a minor nature, some of dishonesty, two of possession of a prohibited drug, and two separate charges of supplying heroin for which the applicant was placed on recognisances. In 2003 he faced trial on a charge of conveying or possessing a large quantity of prohibited imports, in the form of narcotics, but the jury could not agree. Subsequently he pleaded guilty to being an accessory after the fact to some such offence and on 19 April 2004 he was sentenced to periodic detention for 14 months, a period which expired prior to 25 August 2005, but which was still current when the applicant commenced the discussions which led to the supply, the subject of the offence. Judge Charteris's approach to the applicant's criminal record was: "That he is not entitled to mitigation, as regards his previous criminal activity and character, but also his criminal record is not an aggravating factor in my assessment of his criminality". 17 The principal statutory provision relevant to the ground of appeal is s23 of the Crimes (Sentencing Procedure) Act, subsection 1 of which authorises a court to impose a lesser penalty than would otherwise be imposed, having regard to the degree of assistance that an offender has given or undertaken to give to authorities. Section 23(3) provides that "a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." Subsection 2 obliges the court in deciding whether to impose a lesser penalty, and the extent of it, to consider a number of specified matters. These include: "(b) the significance and usefulness of the offender's assistance; (d) the nature and extent of the offender's assistance or promised assistance; (g) whether the offender will suffer harsher custodial conditions as a consequence." 18 There was no evidence directed to the subject of paragraph (g) although it would be appropriate to infer that if the applicant did give evidence against Mr Burton, he would be likely to suffer some increase in the harshness of his custodial conditions. I have referred above to the matters the subject of paragraphs (b) and (d). 19 The evidence, the subject of those paragraphs, provides justification for his Honour's view that it was unlikely that the applicant would be called to give evidence. When regard is had to the other evidence apparently available against Mr Burton, there is much to be said for the view that, whatever the applicant's good intentions, and although there was the possibility that he might be called by the Crown in any trial of Mr Burton, the likelihood is that the usefulness and nature and extent of any assistance from the applicant will be nil. Thus, so will be the significance of any assistance. Of course, that is not to say that there should be no reward for his willingness to assist. Authorities indicate that in order to encourage such assistance rewards should be given. However it follows that any reward may not be large. Furthermore, as the authorities also recognise, there is a considerable degree of overlap between the various aspects of a plea, remorse or contrition and assistance. 20 Senior counsel appearing for the applicant seemed to address at times upon the basis that there was no appreciable difference between discount to be given to an applicant who had displayed a willingness to provide assistance, and an applicant whose willingness in fact resulted in him being called and him actually being of assistance. In support of this approach reliance was placed upon a passage from a decision of this court in R v Cartwright (1989) 17 NSWLR 243 at 253. That passage, and an earlier one to place it in context were:- "It is clearly in the public interest that offenders should be encouraged to supply information to the authorities … In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it … The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. … Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effected. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself." 21 Certainly the passage relied on seems to suggest that "the reward" should be given even if the assistance proffered is not in fact used by the authorities. Experienced though he is in this court, counsel did not refer the court to the decision of Yenice (1994) 72 A Crim R 234, where Hunt CJ at CL, who had given the leading judgment in R v Cartwright which was relied on, expressly recognised that the substance of what he had said in R v Cartwright in the passage quoted had been overruled by the legislature in enacting then s442B of the Crimes Act 1900, now replaced by s23. In Yenice at page 239, Justice Hunt said that, "That argument cannot stand in the face of the statute. It is most unfortunate that the argument proceeded without recognition that his foundation had disappeared." 22 By comparison with the maximum sentence of life imprisonment, the sentence of 11 years and six months with a non-parole period of 7 years and six months was not too high. The non-parole period was but half the standard non-parole period, and although both because the applicant pleaded guilty and his offence was adjudged to fall below the "mid range of seriousness", the standard non-parole period did not apply - see Regina v Way (2004) 60 NSWLR 168 - by this standard also the sentence was not high. Certainly the applicant was fairly regarded as entitled to a maximum deduction for his plea but, given the maximum in this situation is 25%, or very close thereto, the applicant received a substantial allowance for other factors of which the most obvious ones are contrition, assistance and prospects of rehabilitation. 23 That is not to say that these were the only factors. The ultimate sentence reflects all of the considerations of sentencing - general and personal deterrence, rehabilitation, retribution and protection of the community, but it is not obvious that many of these argue in the applicant's favour. From his experience with the courts as a youth, and in connection with the charges that preceded his being placed on periodic detention, he could have had no doubt as to the law's disapproval of drug dealing. He chose to disobey and in a very major way. I am not persuaded that the applicant did not receive all of the discount that he was entitled to for assistance. 24 Indeed, I would go further. Embarking on the enterprise which led to the supply offence charged while still subject to the conditional liberty involved in periodic detention was a seriously aggravating feature of the applicant's offending. To commit the supply offence in light of the applicant's past offending, particularly given the recency of the accessory after the fact offence, makes inescapable the conclusion that the applicant "has manifested a continuing attitude of disobedience to the law and shows a dangerous propensity and need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind" - see Veen v Regina (No 2) (1987-1988) 164 CLR 465 at 477). 25 Even if I concluded that the ground of appeal relied upon the applicant was made out, I would not interfere with the sentence imposed. Section 6(3) of the Criminal Appeal Act 1912 provides: "On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, where more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 26 When regard is had to either the applicant's offence of being an accessory after the fact, or to the enormous quantity of drugs involved in this case, no lesser sentence should have been passed. The matter is a fortiori when both of these matters are factored in. 27 I propose that the court grant leave to appeal but dismiss the appeal. 28 GILES JA: I agree with the reasons of Hulme J. I would add that in R v Barrientos [1999] NSWCCA 1 Abadee J, with whom Sheller JA agreed, referred at [46] to the need to recognise the distinction between, on the one hand the giving of the discount, and on the other, the quantum of the discount where an entitlement to some discount was established. His Honour referred to this need in considering a discount for assistance to authorities. He said that entitlement to a discount does not necessarily depend upon establishing whether or not the information supplied turns out in fact to have been effective, but that the extent of benefit which flows from assistance is a matter relevant to the evaluation of the discount. 29 His Honour spoke in the past tense, as was appropriate on the facts. At times in submissions this morning Senior Counsel for the applicant suggested that s23 of the Crimes (Sentencing Procedure) Act was concerned only with past assistance, and therefore where it referred in para (b) of subs (2) to regard to the significance and usefulness of the offender's assistance it provided no warrant for paying account to a forecast of the significance and usefulness where, as in the present case, that was a matter for the future. 30 I do not think that that can be accepted. Apart from the reference in para (d) of s23(2) to promised assistance, para (b) itself refers to the significance and usefulness of the assistance "taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered". Section 23(1) also refers to the degree to which the offender "has undertaken to assist". Plainly, there needs to be an evaluation by the judge, for the purposes of sentencing, of the significance and usefulness of the proffered assistance. 31 For the reasons given by Hulme J I am not persuaded that there was any error in the evaluation made by the judge in the present case. I agree with the orders his Honour proposes. 32 HISLOP J: I also agree with Justice Hulme. 33 GILES JA: The orders proposed by Justice Hulme will therefore be the orders of the court. **********

SUKKAR Paul Tony v R

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